White v. Bloom, s. 79-1858

Decision Date30 April 1980
Docket NumberNos. 79-1858,79-1893,s. 79-1858
PartiesGary WHITE, Appellant, v. Lackland BLOOM; Daniel Murphy; Robert J. Walsh, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Gary White, appellant pro se.

Jack L. Koehr, City Counselor and John J. FitzGibbon, Associate City Counsel, St. Louis, Mo., for appellee, Bloom.

Ralph C. Kleinschmidt and Edward S. Meyer, Evans & Dixon, St. Louis, Mo., for appellee, Walsh.

Before ROSS, STEPHENSON and ARNOLD, Circuit Judges.

STEPHENSON, Circuit Judge.

Gary White, a black inmate of a state penitentiary, appeals from the dismissal of his pro se complaint brought under 42 U.S.C. § 1983. White, who was convicted by a jury of first degree robbery in 1975, filed a complaint in June 1979 against the judge, the prosecutor, and White's court-appointed attorney. The complaint alleged, inter alia, that the three defendants had conspired to impanel an all-white jury over White's objections and in his enforced absence. The district court 1 dismissed the complaint for failure to state a claim upon which relief could be granted. We affirm as to the claims against the judge and prosecutor, but remand as to the claim against the court-appointed attorney.

The allegations made in White's pleadings are as follows. On February 26, 1975, the Circuit Court of the City of St. Louis impaneled the jury for White's criminal trial. White was removed from the courtroom prior to the final portion of the voir dire examination of the jury panel and was not returned until a petit jury had been selected. Although two-thirds of the people of St. Louis are black, the petit jury selected for White's trial was all white. Upon his return, White orally objected to the fact that there was no black person on the jury. White also informed Judge Bloom that he had instructed his court-appointed counsel, Robert J. Walsh, not to participate in any court proceedings in White's absence. White moved to have the court dismiss his counsel and change the trial's venue. Judge Bloom denied these requests. The prosecuting attorney, Daniel Murphy, participated in the jury impanelment. He stated to Judge Bloom that he recalled that White was present during all parts of the jury voir dire, even though defendants Bloom, Walsh, and Murphy all knew that White had been absent. Murphy "also made other perjuring statements in order to obtain a conviction * * * ." Defense counsel Walsh, in addition to his participation in the events thus far described, informed Judge Bloom that "my client is only objecting to the juror box before the jury was impaneled and not the jury as it presently is," even though White was actually objecting to the jury as impaneled. Walsh also conspired with co-defendants Bloom and Murphy "to conceal the facts of (White's) false arrest." On appeal, Walsh continued to "misrepresent" White by not raising the objection to the all-white jury and by signing, with defendants Bloom and Murphy, a trial transcript which they had altered and knew to be false. Although Walsh received word of the affirmance of White's conviction on April 25, 1977 (State v. White, 549 S.W.2d 914 (Mo.App.1977)), he did not inform White, who did not learn of the appeal's outcome until March 1979. Moreover, Walsh did not seek any further appeal.

A court faced with a motion to dismiss a pro se complaint alleging violations of civil rights must read the complaint's allegations expansively, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), and take them as true for purposes of deciding whether they state a claim. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972). Moreover, "the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory." Bonner v. Circuit Court of St. Louis, 526 F.2d 1331, 1334 (8th Cir. 1975) (quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974)).

White's complaint, assuming his allegation of conspiracy is sufficiently specific, relates facts that possibly could entitle him to relief under 42 U.S.C. § 1983 and 42 U.S.C. § 1985. 2 Section 1983 affords equitable and monetary relief against any person who deprives the plaintiff of constitutional rights while acting under the color of state law, and section 1985 affords monetary relief against persons who conspire, with a racial or otherwise class-based animus, to deprive the plaintiff of the equal protection of the laws. See generally Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).

White's basic claim is that the defendants conspired to seat an all-white jury and then conspired to block White's attempts to redress that situation. "Although a Negro defendant is not entitled to a jury containing members of his race, a State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause." Swain v. Alabama, 380 U.S. 202, 203-04, 85 S.Ct. 824, 826, 13 L.Ed.2d 759 (1965). Where the complaint is that the prosecutor has made discriminatory use of peremptory challenges to exclude blacks from the jury, the plaintiff must allege facts to show systematic discrimination over a period of time. E. g., Hampton v. Wyrick, 606 F.2d 834, 835 (8th Cir. 1979). This systematic exclusion, however, is but one of several forms of evidence to support the ultimate fact of "deliberate denial to Negroes on account of race." White's complaint, read broadly, alleges not the prosecutor's discriminatory use of the peremptory challenge, but a judge-prosecutor-defense counsel conspiracy to select an all-white jury. This allegation, although conclusory in nature, alleges a possible due process violation or an equal protection violation under Swain.

White's complaint seeks (1) damages, (2) release from confinement, and (3) the institution of criminal charges against the defendants. Assuming, without deciding, that White has alleged a constitutional violation, we address in turn White's requested forms of relief.

I. Damages.

A. Official Immunity

At the outset, we consider the district court's holding that all three defendants had acted within their judicial or quasi-judicial capacities and thus had absolute immunity from civil liability. Although this holding was correct as to Judge Bloom and prosecutor Murphy, subsequent legal developments have rendered it erroneous as to court-appointed counsel Walsh.

A judge is immune from liability if (1) the judge had jurisdiction over the subject matter, and (2) the acts complained of were judicial acts, i. e., performed within the judicial capacity. Clark v. Taylor, No. 79-2231, slip op. at 6-7 (D.C.Cir. Feb. 27, 1980); see Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331 (1978). Judge Bloom's actions fall within these categories. First, we note that the Circuit Court of the City of St. Louis is a court of general jurisdiction, having "original jurisdiction over all cases and matters, civil and criminal." Mo.Const. Art. V, § 14(a). Second, the judicial behavior White complains of permitting White's absence during the jury impanelment proceeding and ruling against White's motions to dismiss counsel and to change venue were "judicial acts" under the analysis suggested by Stump v. Sparkman, supra. The Court in Stump explained that whether an act is "judicial" depends upon whether it is a function normally performed by a judge and whether the complaining party was dealing with the judge in his judicial capacity. 98 S.Ct. at 1107. Here, both factors indicate Judge Bloom's decisions were judicial acts. Permitting White to be absent during jury impanelment and refusing to dismiss White's counsel and to move the trial may have been actions taken in error, or arguendo may even have been done maliciously; but they were nevertheless done within the judicial capacity, and Judge Bloom is therefore immune.

A prosecutor enjoys absolute immunity with respect to initiating a prosecution and presenting the state's case. Imbler v. Pachtman, 424 U.S. 409, 424-28, 96 S.Ct. 984, 992-94, 47 L.Ed.2d 128 (1976). The prosecutorial acts specifically complained of here impaneling an all-white jury in White's absence and later stating that White had been present occurred, if they occurred at all, while Murphy was presenting the state's case. He is accordingly immune from liability.

The district court held that defendant Walsh, as a court-appointed defense counsel, enjoyed an absolute immunity akin to that enjoyed by a judge or prosecutor. This position, although it had been adopted by at least four circuits, 3 is no longer tenable after the recent decision of Ferri v. Ackerman, --- U.S. ----, 100 S.Ct. 402, 62 L.Ed.2d 355 (1979). The Ferri Court reasoned that while the prospect of personal litigation would impede the performance of the function of prosecutor or judge, the prospect of a malpractice suit by a criminal defendant would not conflict with the competent performance of the function of criminal defense counsel. Id. 100 S.Ct. at 409. An important reason supporting common law immunity for prosecutors and judges therefore does not support a like immunity for court-appointed attorneys. 4 Although Ferri involved a state malpractice action, its logic extends to section 1983 claims; its broad holding is that the federal common law immunity available to prosecutors and judges, Imbler v. Pachtman, supra, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128; Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), is not available to court-appointed attorneys.

Walsh next contends that White's damage claim can be dismissed as barred by a statute of limitation. Because 42 U.S.C. §§ 1983, 1985 do not contain their own periods of limitation, the controlling period would ordinarily be the most appropriate one provided by state law. See Johnson v. Railway...

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